United States v. Charles Johnson , 625 F. App'x 225 ( 2015 )

Case: 15-50570 Document: 00513314208 Page: 1 Date Filed: 12/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50570 FILED
Summary Calendar December 18, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHARLES EDWARD JOHNSON,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-97
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Charles Edward Johnson, federal prisoner # 83808-180, seeks to proceed
in forma pauperis (IFP) in his appeal from the district court’s denial of his 18
U.S.C. § 3582(c)(2) motion to reduce his sentence of 365 months of
imprisonment, imposed following his conviction of possession with intent to
distribute at least five grams of a mixture or substance containing cocaine base
(“crack” cocaine) within 1000 feet of a public elementary school. See 21 U.S.C.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-50570
§ 841(a)(1), (b)(1)(B)(iii) (2006); 21 U.S.C. § 860(a). By moving to proceed IFP,
Johnson is challenging the district court’s certification decision that his appeal
was not taken in good faith because it is frivolous. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
Johnson argues that the district court lacked authority to deny him a
reduction in his sentence based on his criminal background and abused its
discretion in doing so, that the district court could only consider his criminal
history to determine the applicable guidelines range to sentence him, that the
denial of a sentence reduction in his case creates an unwarranted disparity
between his sentence and that of other similarly situated defendants, and that
the factors on which the district court relied to sentence him had been
considered already in setting the guidelines range.
The district court implicitly determined that Johnson was eligible for the
two-level reduction to his base offense level under Amendment 782 to the
Sentencing Guidelines. See Dillon v. United States, 560 U.S. 817, 826 (2010).
However, the district court denied Johnson’s motion as a matter of discretion,
referring specifically to the 18 U.S.C. § 3553(a) sentencing factors of the need
“to protect the public from further crimes of the defendant,” “the seriousness
of the offense, [and the need to] promote respect for the law . . . or afford
adequate deterrence to criminal conduct.” United States v. Whitebird, 55 F.3d
1007, 1010 (5th Cir. 1995). Johnson’s disagreement with the district court’s
decision fails to show the district court abused its discretion. See United States
v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
Johnson untimely appealed the district court’s November 19, 2014, order
denying his motion to correct his presentence report, see FED. R. APP. P. 4, and
timely appealed the district court’s June 30, 2015, denial of reconsideration of
its order denying the motion to correct the presentence report. Complaints
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No. 15-50570
regarding the contents of a presentence report must be raised prior to the
imposition of sentence and the district court thus lacked jurisdiction to
consider Johnson’s motion, see United States v. Engs, 884 F.2d 894, 895-97 (5th
Cir. 1989), and this court is without jurisdiction over the appeal of the decision,
see United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
As to Johnson’s contention that the district court erred in denying his
motion to appoint counsel, he was not entitled to appointment of counsel as a
matter of right. See Whitebird, 55 F.3d at 1011. Further, the interests of
justice did not require appointment of counsel to argue for a sentence reduction
under Johnson v. United States, 135 S. Ct. 2551 (2015), as Johnson urged,
because the case is inapplicable to his case. See Whitebird, 55 F.3d at 1011.
Johnson’s vague assertions in support of appointment of counsel in this court
likewise reveal no novel, complex, or meritorious issues, and appointment of
counsel thus is not warranted in the interests of justice in this court. See
Whitebird, 55 F.3d at 1011.
Johnson’s motion for immediate release, based upon Amendment 782 to
the United States Sentencing Guidelines, is unavailing. Amendment 782 did
not entitle Johnson to a sentence reduction, and the district court acted within
its discretion in denying him a reduction, as we noted above. See Whitebird,
55 F.3d at 1010. Johnson’s vague challenge to the timeliness of the processing
of his appeal fails to identify a specific delay, the underlying reasons for such
delay, Johnson’s efforts to obtain a speedier resolution, or any prejudice to him
from the delay. See Barker v. Wingo, 407 U.S. 514 (1972); Rheuark v. Shaw,
628 F.2d 297, 302-303 (5th Cir. 1980). Johnson thus fails to show a due process
violation from any alleged delay. See Barker, 407 U.S. at 531; Rheuark, 628
F.2d at 302-03.
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For these reasons, Johnson has not demonstrated that he will present a
nonfrivolous issue with respect to the district court’s denial of his § 3582(c)(2)
motion. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly,
his request for leave to proceed IFP on appeal is DENIED, and the appeal is
DISMISSED as frivolous. See 5TH CIR. R. 42.2. The motions for appointment
of counsel and for immediate release, as well as all other outstanding motions,
are likewise DENIED.
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